Can DCPS Teachers Still Grieve Dismissal for Poor Performance After All?
A few weeks ago, the Washington Teachers Union and hard-charging D.C. Public Schools (DCPS) Chancellor Michelle Rhee agreed to a dramatic new contract that was celebrated by reformers for giving the district much more freedom to reward effective teachers and dismiss ineffective ones. Attracting particular notice was the provision stipulating that a teacher fired for poor performance can protest only the review process itself--not the judgment.
In a New York Post op-ed, Rhee explained that this means, "The end of tenure as a 'job for life.' If a teacher is rated as 'ineffective,' she is immediately terminated from the system... Teachers cannot grieve their ratings, they can only grieve procedural errors." As New York City schools Chancellor Joel Klein told me, "All a teacher can grieve is the process. For instance, if they were supposed to get five observations and only got one, they can grieve that. And I think you should be able to grieve that."
This is a big deal. So I took notice when an alert reader e-mailed me to flag a potential discrepancy in Klein and Rhee's analysis. "The Reflective Educator" pointed out a possible source of confusion in Section 15 of the contract (see page 50 of the full contract here). The issue concerns two seemingly competing provisions:
"Section 15.3: DCPS's compliance with the evaluation process, and not the evaluation judgment (emphasis added), shall be subject to the grievance and arbitration process.
Section 15.5: Employees maintain their rights to appeal below average or unsatisfactory performance evaluations pursuant to Title 5 of the DCMR, Sections 1306.8-1306.13."
The relevant sections of Title 5 of the DCMR (DC Municipal Regulations) are:
"1306.8 Employees shall have the right to appeal below average or unsatisfactory performance evaluations.
1306.9 Except as provided in § 1306.3, appeal of a performance rating of "below average" or "unsatisfactory" shall be made in writing to the Superintendent of Schools within thirty (30) days of receipt of the contested evaluation.
1306.10 An appeal shall set forth the reasons for the appeal. Upon receipt of an appeal, the Superintendent may establish an Impartial Review Board consisting of three persons.
1306.11 The Impartial Review Board shall be responsible for reviewing, on behalf of the Superintendent, the information available concerning performance of the individual.
1306.12 The Superintendent of Schools shall advise the employee, in writing, of the disposition of the contested evaluation.
1306.13 Any further appeal from the decision of the Superintendent by the employee shall be to the D.C. Office of Employee Appeals, pursuant to procedures established by that office."
This all seems like it might allow teachers to grieve poor evaluations via the "backdoor" of the D.C. Municipal Regulations. However, given my lack of legal expertise, I opted to reach out to a few informed experts rather than blindly speculate.
Here's how folks explained it to me. Kaya Henderson, Deputy Chancellor of DCPS and the district's point person on the contract, says, "15.3 is what DCPS and the union agreed to. You can grieve the process, not the judgment. Huge for us. And, if you are fired as a result of the evaluation, you stay fired, even while the grievance process is proceeding. 15.5 refers to a D.C. law that guarantees an employee appeal to the city's Office of Employee Appeals. This is a legal right that can't be negotiated away. You can appeal to OEA if you believe the agency hasn't followed the rules. For example, many EEO [Equal Employment Opportunity] cases go to OEA."
Rob Weil, Director of Field Programs at the American Federation of Teachers, tells me, "Teachers have the right to grieve a performance review. They have always had this right. The language in the old contract was not well-written, so it was cleaned up... The contract didn't actually change anything. For more than a decade, the instrument and process of teacher evaluation has not been a subject of collective bargaining in D.C. This makes this whole subject very difficult."
Rob reiterates Randi Weingarten's argument that the D.C. contract is not a national model because the D.C. situation is unique. He says, "The Chancellor has tremendous powers that were granted years ago as well as under the mayoral control statute. For example, the way reduction in force works in D.C. is very different than most other places. So it's important to take into account D.C.'s unique setting."
Joleen Okun, attorney at Schnader, Harrison, Segal & Lewis LLP, crack employment litigator (and, oh yeah, my lovely wife) says, "The 15.3 language curtails fairly involved, time-consuming and potentially expensive multi-step inquiries outlined in Section 6 of the Contract... Since the Regulations allow for the appeals process to the Superintendant for poor ratings, the teachers maintain this legal right (backstopped by the language of 15.5)."
So, as best I can tell, Michelle and Joel are right. The language was a big win for DCPS. Section 15.3 does indeed prevent a teacher from grieving a bad judgment, while section 15.5 simply preserves the legal right of all employees to appeal to D.C.'s Office of Employee Appeals in the event a rule wasn't followed. But I've zero doubt that a teacher terminated for performance will try their luck on this count soon enough, and then we'll see what the courts have to say.